Ortez v. Dretke ( 2004 )


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  •                                                        United States Court of Appeals
    Fifth Circuit
    F I L E D
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT                September 1, 2004
    Charles R. Fulbruge III
    Clerk
    No. 03-40724
    Summary Calendar
    JAMES BRYAN ORTEZ,
    Petitioner-Appellant,
    versus
    DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF
    CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS
    DIVISION,
    Respondent-Appellee.
    --------------------
    Appeal from the United States District Court
    for the Eastern District of Texas
    USDC No. 4:99-CV-246
    --------------------
    Before DAVIS, SMITH, and DENNIS, Circuit Judges.
    PER CURIAM:*
    James Bryan Ortez, Texas prisoner #778260, was granted a
    certificate of appealability (COA) after it was decided that
    jurists of reason would find it debatable whether the district
    court was correct in dismissing his prosecutorial-misconduct
    claims as procedurally barred.   The district court determined
    that all seven of Ortez’s claims of prosecutorial misconduct were
    barred under the Texas contemporaneous-objection rule.      Our
    *
    Pursuant to 5TH CIR. R. 47.5, the court has determined that
    this opinion should not be published and is not precedent except
    under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
    No. 03-40724
    -2-
    review of the district court’s determination is de novo.     See
    Boyd v. Scott, 
    45 F.3d 876
    , 877 (5th Cir. 1994).
    “A federal court will not review a question of federal law
    decided by a state court if the decision of that state court
    rests on a state ground that is both independent of the merits of
    the federal claim and adequate to support that judgment.”     Amos
    v. Scott, 
    61 F.3d 333
    , 338 (5th Cir. 1995).   “The Texas
    contemporaneous objection rule constitutes an adequate and
    independent state ground that procedurally bars federal habeas
    review of a petitioner’s claims.”   Jackson v. Johnson, 
    194 F.3d 641
    , 652 (5th Cir. 1999) (internal quotation marks omitted).
    “[I]n order to fulfill the independence requirement, the
    last state court rendering a judgment must ‘clearly and
    expressly’ indicate that its judgment rests on a state procedural
    bar.”   Glover v. Cain, 
    128 F.3d 900
    , 902 (5th Cir. 1997).
    Although the state habeas court’s order did not specify which
    claims of prosecutorial misconduct were procedurally defaulted,
    the court clearly and expressly relied on the bar.
    A review of the record reveals that no objection was made
    concerning Ortez’s claim that the prosecutor (1) commented on his
    failure to testify; (2) repeatedly used the word “rape” to
    inflame the jury; (3) made an improper closing argument;
    (4) elicited testimony of other bad acts and referred to those
    acts in her closing argument; (5) improperly alerted the jury
    panel to his previous convictions during the voir dire; and (6)
    No. 03-40724
    -3-
    referred to him as a “serial rapist” during the punishment phase.
    Ortez must thus overcome the procedural bar in order to obtain
    review of these claims.    See Styron v. Johnson, 
    262 F.3d 438
    , 454
    (5th Cir. 2001).
    In order to overcome the procedural bar, Ortez must
    “demonstrate cause for the default and actual prejudice as a
    result of the alleged violation of federal law, or demonstrate
    that failure to consider the claims will result in a fundamental
    miscarriage of justice.”    Coleman v. Thompson, 
    501 U.S. 722
    , 750
    (1991).    Ortez suggests that he has “cause” for his procedural
    default because of “the failure of defense counsel to
    contemporaneously object or otherwise preserve the errors for
    review.”
    Although an attorney’s failure to make objections may
    constitute “cause” for a procedural default, the petitioner must
    show that counsel’s failure to object amounted to ineffective
    assistance of counsel.     Cotton v. Cockrell, 
    343 F.3d 746
    , 754
    (5th Cir. 2003), cert. denied, 
    124 S. Ct. 1417
    (2004).      Ortez
    thus must “show that his counsel’s performance was deficient and
    that he was actually prejudiced by the deficient performance.”
    
    Id. He “must
    show that the prejudice rendered the trial
    fundamentally unfair or unreliable.”     
    Id. (internal quotation
    marks omitted).    Ortez fails to make such a showing.
    Ortez also fails to show a risk of a fundamental miscarriage
    of justice.    See 
    Coleman, 501 U.S. at 750
    .   To make such a
    No. 03-40724
    -4-
    showing, Ortez must demonstrate that he is actually innocent of
    the offense.     See Murray v. Carrier, 
    477 U.S. 496
    , 478 (1986).
    In affirming Ortez’s conviction, the state appellate court
    noted that the victim, who was 14 years old at the time of the
    assault, was brought to the hospital for an examination after the
    assault.    The hospital examination revealed Ortez’s semen on the
    victim’s vaginal swab, panties, and jeans.     The victim testified
    that she did not consent to having sex with Ortez.    There was no
    fundamental miscarriage of justice.     See 
    Murray, 477 U.S. at 478
    .
    The district court did not err in its determination that six of
    Ortez’s seven prosecutorial-misconduct claims were procedurally
    barred.
    Ortez’s counsel did object to the prosecutor’s allegedly
    improper questioning of the victim’s step-mother.    Accordingly,
    that claim was not procedurally barred.     Nevertheless, the denial
    of federal habeas relief may be affirmed on any ground supported
    by the record.    Scott v. Johnson, 
    227 F.3d 260
    , 262 (5th Cir.
    2000).
    In order to obtain habeas relief, Ortez must show that the
    allegedly improper question rendered the trial fundamentally
    unfair.    See Dowthitt v. Johnson, 
    230 F.3d 733
    , 755 (5th Cir.
    2000).    Ortez acknowledges that the allegedly improper question
    by the prosecutor did not concern either him or the victim, but
    he argues that it was improper because it commented on the
    integrity and credibility of the witness.    However, because the
    No. 03-40724
    -5-
    witness did not answer the question, the jury could not have made
    any such inference.    Moreover, when the prosecutor objected to
    the question, the trial court sustained the objection, and
    instructed the jury to disregard the question.
    “Jurors are presumed to follow their instructions.”   Woods
    v. Johnson, 
    75 F.3d 1017
    , 1036 n.29 (5th Cir. 1996).    Thus, any
    possible prejudice that resulted from the prosecutor’s question
    was cured by the trial court’s curative instruction.    Because
    Ortez has not shown that the prosecutor’s unanswered question
    rendered the trial fundamentally unfair, he is not entitled to
    habeas corpus relief on his claim.    See 
    Dowthitt, 230 F.3d at 755
    .    The judgment of the district court is
    AFFIRMED.